Leo General Technical Company Limited v Tata Chemicals Magadi Limited

4. 2. That the learned magistrate erred in law and fact in failing to appreciate that invoice number 0000001510 for Ksh 1,970,819.72 had not been settled. 3. That the trial magistrate erred in law and fact in not appreciating that the evidence adduced by the respondents was on invoices which had been paid and had nothing to do with the case before her. 4. That the learned trial magistrate erred in law and in fact in failing to find the respondents evidence contradictory and unreliable and thereat being guided only by the evidence of the appellant which was consistent and reliable 5. That the learned trial magistrate erred in law and in fact in disregarding the clear admission of the respondent in their correspondence to the appellant that the claimed amount was outstanding except that they had some challenges which they had significantly sorted out. 6. That the trial magistrate erred in law and in fact in ignoring the clear evidence to the effect that Mr Peter Kinyanjui on 31st March 2017 sent the workings to the appellants which confirmed that the claimed amount was outstanding. 7. That the magistrate erred in law and in fact in not inferring adverse implication on the failure of the respondents to produce the original worksheet documents which they confirmed were their own documents and were in their possession. 8. That there were no witnesses from the procurement and manufacturing sections where the original documents were tabulated which could have assisted the court as their only witness was from finance section. The appellants thus prayed that the appeal be allowed and the judgement of the magistrate court set aside and substituted with judgement in favour of the appellant. Evidence before the Magistrate court in summary: 5. John Oringo Osumba testified before the magistrate court and told the court he was the director of the appellant company and had entered into various agreements with the respondents wherein the respondent covenanted to pay a sum of ksh 7,154,643.99. It is stated that the respondent paid a sum of Ksh 5,455,662.17 leaving a balance of 1,698, 981.82 which remains outstanding. On being cross examined by the respondent counsel, the witness agreed that there was no document to prove that the initial work was worth 7,100,000 but rather relied on a summary dated April 2016. Further, that he physically submitted the documents pertaining to the balance of 1.6 Million although he did not have proof of the same. As regards the documents attached to the email correspondence, the witness stated that there is no evidence that those attachments originated from the respondents as there was no stamps or letter heads though denying that he generated those documents. The witness confirmed that for payments to be made, time sheets and the Authorization forms are needed for the Local Purchase Order to be paid. 6. On its part the respondent called Geoffrey Langat, the Finance Controller who confirmed the existence of a contractual relationship between the parties for provision of manpower service. He set out the procedure necessary for payment to be done and told the court that all the invoices raised by the appellant filed on 6th March 2020 have purchase number and they were fully paid on 11th June 2016. The witness stated that the invoice of 13th February 2018 did not show the purchase order number and therefore it was difficult to confirm that work was done and completed. That in the email of 30th march https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5250/eng@2026-01-29 2

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2017, the respondent had sought for evidence of the alleged outstanding amount of Ksh.1.6 Million since according to the respondent the entire amount had been fully paid as communicated in the email. 7. In cross examination, the witness told the court that indeed it was true that the appellant had vide email of 28th march 2017, demanded payment of ksh. 1.6 Million which was responded to vide email of 30th march 2017 to the effect that the respondent was going through the paperwork and ready to peruse the same. The witness continued with his testimony on 9th August 2021 after the defendant/respondent sought adjournment to avail some documents referred to in email dated 31st march 2017 confirming payment of Ksh. 5.4 million and that the documents did not refer to unpaid ksh 1.6 million which amount was part of the 5.4 million paid out. Appellant submissions: 8. The appellant strongly contend that it did work for the respondent as covenanted and the respondent duly notified to its satisfaction, but despite demand for payment made, the respondent has refused to pay the outstanding amount of ksh.1.698.981.81 exclusive of VAT. The appellant submits that for each of the work done, an invoice is generated by the appellant for sum due then submitted to the respondent for payment once the respondent confirmed that the sum due is what is indicated then the respondent generates an LPO number which is within its mandate. The appellant contend that the respondent email dated 31st march 2017 affirmed that indeed work was done to the required standard and gives figures which when added amounts to 1,698,981.80 the amount due to the appellant. It is further submitted that the respondent supplementary list of documents filed on 23rd November 2020 confirms that the said amount is due and payable to the appellant. See LGT 3. 9. The appellant submits that once proof of work is acknowledged by the respondent then it is their responsibility to generate the LPO for invoice number 00000151 of the amount owing plus VAT. That LPO for the invoice indicating payment of the specified amount is the only proof that the specific amount as indicated in the invoice was paid to the appellant. Since the respondent has not produced any proof of payment, the appellant submits that the same has not been paid and that the respondent should be ordered to pay. 10. The appellant contends that contrary to the position held by the trial court, there was no communication breakdown between the parties and that the email of 31st march 2017 from the respondents confirmed that work was done and the amount due for payment. It is contended that the said email was never denied nor was the author Peter Kinyanjui called as a witness. It was therefore as submitted by the appellant the duty of the respondent to generate LPO after receiving the invoice from the appellant which was the only document expected of the appellant. Respondent submissions 11. The respondents on the other hand submit that the learned magistrate made no error of law or fact in determination of the case. It is the respondent position that the appeal raises no arguable or reasonable grounds to warrant the appellate court disturb its finding. The respondent submits that there is no dispute whatsoever that the appellant rendered service and was paid for the same to the tune of 5,455,662.17. The respondent submit that the appellant provided services in 2016 and was paid Ksh.6,412,624.55 on 11th July 2016 being the agreed sum of ksh 5,455662.17 and VAT. 12. It is contended that the invoices submitted by the appellant had been duly paid following the demonstration of the work done and that the disputed invoice submitted by the appellant did not bear purchase order number and was not supported by timesheets. Further, the supplementary documents https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5250/eng@2026-01-29 3

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availed by the respondent demonstrate that the services rendered by the appellant had already been paid for as part of the Ksh5,455,662.17 as illustrated hereunder; a. The documents forwarded and referred to as Leo General technical (LGT) in the email, were with respect to the total sum of ksh.5,455,662.17 paid to the appellant b. The documents labelled as LGT1, LGT2, LGT3 and LGT4 were referred in the email as PRs Final analysis and whereasLGT5 was referred to as LGT5 PRs 2.8.16 c. LGT5 provided a summary of the total paid to the appellant i.e. Ksh. 4,962,308.22 for LGT1 to LGT4 and Ksh.493,353.95 adding up to cumulative sum of 5,455,662.17 d. That the tabulation presented by the appellant on the disputed sum of Ksh. 1,608,296.96 was cherry -picked from LGT3. e. That the total sum claimed by the appellant in the suit of Ksh.1,698,981.82 is the total sum of the entries in LGT3. 13. The respondent submits that the documents relied by the appellant as evidence of alleged agreed price of ksh7,154,643.99 do not meet the requirement for a valid contract as they were neither agreed upon or signed by the parties. They were also not supported by work authorization form, time sheets, service entry sheets or any documentary evidence. All the 13 invoices raised by the appellant in 2016 were paid for the work done whereas the disputed invoice 000001510 were supposedly generated in 2018 two years later and no reason was provided why the said invoice was submitted late. The respondent also submitted that the 13 invoices raised and paid for in 2016 had purchase order number unlike the disputed one dated 13th February 2018. The respondent contends that for the purchase order number to be issued, the appellant is required to submit the authorization forms and timesheets which it is submitted was never done by the appellant in the matter before the court. There were therefore no documents to support the disputed sum. The respondent also asserts that the entries in the invoice No 000001510 were extracted from LGT3, which had already been settled in the invoices submitted in 2016 14. The respondent thus submitted that from the totalling of the foregoing they were able to demonstrate to the trial court that the disputed invoice was not genuine and had been extrapolated from the invoices already submitted. It is contended that the invoice in question was insufficient to prove that additional manpower services were provided by the appellant. 15. The respondent therefore prays that the appeal be dismissed with cost to the respondent as the appellant has failed to establish facts and contention to support its claim. Analysis and Determination: I discern the issue for determination as whether the trial court erred in law in holding that the appellant had not proved its case on a balance of probability. 16. In accordance with Section 78(2) of the Civil Procedure Act, this court, sitting as the first appellate court has the mandate to re-evaluate and re-analyse the evidence on record and to arrive at its own https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5250/eng@2026-01-29 4

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independent conclusions, while bearing in mind that it did not have the benefit of seeing or hearing the witnesses firsthand. Section 78 (2) of the Act provides as follows: “ The appellate court shall have the same powers and shall perform nearly the same duties as are conferred and imposed by this Act on courts of original jurisdiction in respect of suits instituted therein.” 17. The guiding principle for a first appellate court is well articulated in several case law including Selle & Another v Associated Motor Boat Co. Ltd & Others [1968] EA 123, where the Court held: “ An appeal to this court from a trial by the High Court is by way of a retrial, and the principles upon which this court acts in such an appeal are well settled. Briefly put, they are that this court must reconsider the evidence, evaluate it itself and draw its own conclusions though it should always bear in mind that it has neither seen nor heard the witnesses and should make due allowance in this respect.” 18. He who alleges must prove. This is the principle of the “burden of proof” and which is codified in Section 107 of the Evidence Act as follows: “ 107 (1) Whoever desires any court to give judgment as to any legal right or liability dependent on the existence of facts which he asserts must prove that those facts exist. (2) 19. When a person is bound to prove the existence of any fact it is said that the burden of proof lies on that person.” On the issue of “burden of proof” and the duty of a Plaintiff to present evidence to prove his case, the Court of Appeal, in the case of Karugi & Another V. Kabiya & 3 Others [1987] KLR 347, stated that; “ The burden on a plaintiff to prove his case remains the same throughout the case even though that burden may become easier to discharge where the matter is not validly defended and that the burden of proof is in no way lessened because the case is heard by way of formal proof …. The plaintiff must adduce evidence which, in the absence of rebuttal evidence by the defendant convinces the court that on a balance of probabilities it proves the claim.” 20. Similarly, in the case of Anne Wambui Ndiritu vs Joseph Kiprono Ropkoi & Another [2005] eKLR, the Court of Appeal, again, held that: “ As a general proposition under Section 107 (1) of the Evidence Act, Cap 80, the legal burden of proof lies upon the party who invokes the aid of the law and substantially asserts the affirmative of the issue.” 21. In this case, it is the obligation of the appellant to show by concrete and cogent evidence that specific work was performed under the contract and that the respondent failed to pay. Vide an email dated Tuesday, March 28th 2017, the appellant through one John Osumba wrote to the Respondent (Geoffrey Langat) raising concerns over claims documented in the time sheet that have not been settled for a while asking that the same be settled immediately. The appellant was specific that the amount due and owing was ksh. 1,608, 296.96. In response, an email dated Thursday 30th march 2017 acknowledging receipt of the previous email communication was sent by the respondent stating that “as discussed previously we had some challenges but we have significantly sorted the paper work and now ready to peruse through the documents and that the analysis can now be shared with the appellant https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5250/eng@2026-01-29 5

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staff for review”. Further the respondent informed the appellant that once that is done they would appreciate to have the support for the claim if any. 22. On 31st March 2017, the respondent forwarded two attachments being analysis of the work done as intimated in the previous email communication. These attachments are in the supplementary record of appeal at pages 6-9. Upon receipt of the above email, the appellant wrote back vide email dated Thursday, April 20 2017 stating that the attachments sent by the respondent are in respect to LGT (Leo General Technical Limited) documents amounting to about Ksh.5,000,000 that TCML (Tata Chemicals Magadi Limited) had already paid and that the appellant concerns had been the balance of about 1,600,000 that has been long overdue. In the appellants further list of documents dated 29th September 2020, the appellants attached a summary of payments from Mr Langat an officer of the respondents listing 12 invoices and their respective payment amounting to Ksh 5,429,509.41. At the bottom of that document, is shown the amount remaining to paid being (7,037,806.37- 5,429,509.41 leaving a balance of 1,608,296.96 this being the amount alluded to in the email of 28th March 2017. According to the appellant, as is clear from the above, the work done under the contract entered into with the respondent was for the sum of Ksh. 7,037,806.37. The appellant at the hearing before the trial court did not produce any contract to show that the agreed contract sum was Ksh.7,037,806.37 or any other such higher amount. Indeed, in cross examination the appellant officer admitted that he had not produced any document(s) to show that the initial work was worth Ksh7,100,000. It was incumbent upon the appellant under the law of evidence to prove that the amount of Ksh.1,608,296.96 was truly due and owing by producing evidence to that effect. 23. The documents relied on by the appellant as evidence of the amount due is invoice No. 000001510 dated 13th February 2018 which gives the description of the service rendered, the unit price, the VAT amount and the total amount inclusive of VAT. This document was challenged by the respondent as not being genuine for the reason that some of the entries in the invoice were extracted from LGT3 which had already been paid in 2016. There was no evidence led by the appellant to counter the assertion by the respondent that some entries in the impugned invoice relate to other invoices already paid. 24. It is clear in my view that invoice No 000001510 dated 13th February 2018 is disputed and as such the same cannot be the basis upon which a court can place reliance to find that the amount therein is due and owing. The appellant contended that crucial documents necessary to proof that work was done to the required standard were at all times in the custody of the respondent. These documents included time sheet, authorization form, purchase requisition, service entry sheet/work sheet and LPO which the appellant gave notice of its productions. However, the respondent counters and stated that the appellants own admission confirms that documents were in their possession and personally submitted the said documents pertaining to the balance of 1.6 Million. It is also contended by the respondent that the appellant during the hearing admitted that the timesheet he referred to had been delivered to the respondent. 25. Based on the material placed before the magistrate court and this court I agree with the trial court that the appellant had failed to discharge its burden of proof to the required standard and establish the existence of a contract for work worth 7 Million. The appellant before the trial court was categorical that he was unable to produce evidence of such a contract yet that contract amount was the basis for a claim of unpaid amount of Ksh 1,608,296.96. 26. It was not sufficient for the appellant to simply claim that it was the duty of the respondent to provide certain documents to confirm that work was done. The burden of proof at all times remained with the appellant/Plaintiff and it had to discharge that burden. He did not. https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5250/eng@2026-01-29 6

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27. I therefore have no reason to disturb the finding of the trial court. 28. Consequently, the appeal herein lacks merit and the same is dismissed with cost. DATED AND DELIVERED AT KAJIADO THIS 29TH DAY OF JANUARY 2026 JOHN T LOLWATAN JUDGE https://new.kenyalaw.org/akn/ke/judgment/kehc/2026/5250/eng@2026-01-29 7

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